Appropriations Committee Ignores Performers, Passes AB 1576

Posted May 21st, 2014 06:23 PM

SACRAMENTO—Apparently accepting Assembly member Isadore Hall III's representation that his mandatory "barrier protections" in porn bill, AB 1576, was merely a "workplace safety measure," eight members of the Assembly's Appropriations Committee, including its chairman, Mike Gatto, voted to send the bill to the full Assembly for consideration, with just four members voting against. [Correction: The official vote tally was nine members for, three against.]

The testimony of the bill's proponents sounded much like a rerun of their almost identical testimony before the Arts, Entertainment, Sports, Tourism and Internet Media Committee two weeks ago, with Hall claiming, "The language in AB 1576 aligns state law with existing CalOSHA regulations, and as noted in the analysis, falls below the fiscal threshold of this committee"—a statement he repeated verbatim for effect, since at least one of the objections previously raised to the bill was that it would be prohibitively expensive to enforce—and, if one considers the regulation writing, the increased burdens on CalOSHA's investigative staff, the inevitable lawsuits against the bill if it passes, and the exit from California of most of the adult content producers, taking with them their millions of dollars in tax payments, AB 1576 might just be the most expensive bill the legislature will consider this year, if not this decade.

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Hall also made a point of noting that the cost of treatment for someone infected with HIV, over the course of their life, would be roughly $600,000, a cost which he and Rand Martin, speaking for the bill's co-sponsor, AIDS Healthcare Foundation (AHF), claimed would be borne by California's taxpayers since most performers allegedly don't have health insurance that would cover it. What he failed to mention, but was brought up by several opponents of the bill, was that there hasn't been an on-set HIV infection in the state's adult industry in a decade, much as at least one of the bill's proponents tried to imply that there had been.

Hall also misrepresented to the committee that although the adult industry has made no secret of its plans to leave the state should the mandatory "barrier protections" bill be passed, it essentially had nowhere else to go.

"One of these opposition arguments will be that passing AB 1576 will cause the industry to flee to Nevada or another state, causing a loss of revenue to the state," Hall told the committee. "This cannot [sic] be far from the truth. The fact is that adult film production is only legal in California and New Hampshire. Nevada law is already clear on the regulation of sex work. Sex work is not legal in Las Vegas, and counties that do allow sex work, condom use and weekly testing is mandatory, period. Members, the adult film industry's home is and will be in California. The fact is, the industry isn't going anywhere, and frankly, I don't want them to go anywhere but California where they employ thousands of people and generate millions of dollars in tax revenue."

That claim was firmly refuted by attorney Karen Tynan, who has represented several adult production companies in CalOSHA hearings.

"You have heard that the industry will not leave California," she stated. "We've discussed this at other committee meetings. The industry is leaving California and will leave California. There's been a little bit of miseducation here about whether or not this industry can operate in other states. This industry can operate in other states. There's been a conflagration of the term 'sex work' with the term 'adult film performer.' Prostitution statutes do not govern adult film performances in other states. Comparing sex workers to adult film performers is not appropriate in this context, and the support and arguments based around that are absolutely and unequivocally incorrect. As has been mentioned in previous committee meetings, some of the mid-sized companies have left Southern California. Typically those companies employ 15 to 20 individuals and have revenues in the range of $20 to $25 million per year. Those companies are leaving for other states, including Nevada, Florida and also going more international."

AHF's Martin kept his remarks fairly short, mostly reiterating things Hall had already said, such as that the bill mainly amplifies existing CalOSHA regulations (although the healthcare laws don't mention the adult industry at all), that the bill creates no new testing regimens, and that requiring barrier protections will save the state money.

"On the HIV front, we have been fighting this for 25, 30 years and we have been very successful in scaling back the cost to the state," Martin said of AHF's work. "It is just as true in other STDs, that when you can interrupt that transmission, you save that person from the experience of the disease as well as the cost associated with it. The state budget deserves not to spend money unnecessarily. People deserve not to go to work and get sick. For those reasons, we would ask you to support this bill today."

Martin had brought three former performers with him to testify: Cameron Bay and Rod Daily, both of whose HIV infections are being treated by AHF at no cost to themselves, and Jessie Rogers, who claimed to have contracted herpes during her last days in the industry.

"The adult industry told me I had to test every 28 days, so I tested every 28 days," Bay claimed in her testimony. "The adult industry told me that I had to perform without condoms if I wanted to keep my job or otherwise I'd be replaced, so I performed exactly as I was allowed to perform. The adult industry exposed me to bloodborne pathogens on set because they just wanted to finish a scene, and now I am HIV positive. I did everything the adult film industry told me to do and now I stand before you today HIV-positive."

Note the implication that because she was exposed to blood during a sex scene, "now I am HIV-positive." In fact, everyone with whom Bay worked during the two months before her positive test came back has been tested for HIV, and all were negative, so the question remains, where did her HIV come from?

Similarly, her boyfriend Rod Daily stated that during his eight years performing in gay videos, "I only did condom-only scenes but I also maintained regular testing. I believe that condoms and testing go together. Testing so you know your status, and the condoms, obviously, I believe personally that it helped prevent any STD, because during that eight years, not only did I not contract syphilis, gonorrhea, chlamydia, anything—I did not contract a single STD because of the use of condoms."

And yet he's HIV-positive now? So since Bay didn't get it from anyone she worked with on the sets, and Daily always used condoms in his scenes, where did their infections come from? Sadly, no one on the committee thought to question those assertions, and none of the bill's opponents brought up that contradiction.

The final speaker in favor of the bill's passage was Adam Cohen, a Ph.D. candidate at UCLA's Fielding School of Public Health.

"My interest is data and the data show, in publication after publication, performers are 64 times more at risk for gonorrhea and 34 times more at risk for chlamydia than the general population," Cohen declared. "One in three performers in one study were found to have either chlamydia or gonorrhea despite industry testing standards. Another study found that one in four performers, if they had one infection, would be reinfected within 12 months."

Interestingly, it wasn't anyone speaking in opposition to the bill who refuted Cohen, but rather, one of the assembly members.

"I have looked at the research papers," responded Assembly member Bill Quirk. "Certainly in 2004 there is good evidence there was transmission of HIV on set; there is no comparable study to that. The study which talked about chlamydia and other diseases was a flawed study, as was stated by the actress [Lorelei Lee] who first testified. It actually does not have a good number for how many people were actually tested. It also has an inflated number for the number of people who are infected because the people—the same person could be tested many times; that was used as being many different people coming down with the same number, so I just don't see the evidence here at this time."

Besides those who spoke at length, only one person—Stu Johnson of the California Medical Association, a physicians' lobbying group—identified himself as a supporter of the bill.

The first opposition speaker was Tynan, and she first dealt with the hidden costs of the bill.

"I'd like to start of by discussing the cost of this bill as being drastically undercalculated," she stated. "You'll note that this bill requires the California Department of Public Health to create new testing protocols and regulations. That cost has not been contemplated. These new testing protocols that the California Department of Public Health would have to come up with would clearly be required to be updated on a yearly basis. There are no present California Department of Public Health regulations for the adult industry. Another point to follow on that is the additional cost that will be required with regard to any state agency, including the Department of Industrial Relations, to obtain this log [affirming that performers have been STD-tested] that the bill requires. I don't believe that cost has been contemplated and it would require state agencies to pursue subpoenas and have greater legal costs."

Tynan was also the first to bring up the problems with the new language added to the bill on May 14, that the log must also indicate "that the employee consented to disclosing to the Department of Industrial Relations that the employee was the subject of an HIV test," which she termed "forced consent."

"Forced consent is not consent," she argued, "and the forced consent language is in violation of other health and safety codes, and it flies in the face of our California Constitution protections for privacy."

Lorelei Lee, a 14-year industry veteran was the next speaker, and she stated that she was in the chamber "to speak on behalf of the hundreds of performers who oppose this bill. I have with me a petition signed by over 500 performers in opposition. I also have a statement from the Adult Performer Advocacy Committee [APAC], also stating their opposition to the bill."

Lee proceeded to educate the committee members regarding what STD tests are required of adult performers every 10 days—"HIV, gonorrhea, chlamydia, syphilis, trichomoniasis, hepatitis B and hepatitis C"—and how the industry uses the most sensitive HIV test available, unlike the Elisa test commonly administered by organizations like AHF. She also noted that the physicians on APAC's advisory board are constantly evaluating the efficacy of the testing protocols, and are quick to revise them if/when necessary.

"But I want to make it very clear that performers have a lot of power in terms of enforcing this testing protocol," she said. "We as a group believe in this very strongly; we strongly believe in protecting our own health and the health of our coworkers, so in the instance a producer decided they wanted to somehow try to work around this system, that information would spread very quickly among performers and we would refuse to work for them. And we have also a coalition of agencies; our agents work in our behalf as well, so we do have a lot of power in that situation."

This last point was picked up later by another industry supporter, attorney Michael Chate, who noted, "This is a bill about performer safety. Neither the performers nor others in the industry were consulted about how to insure performer safety and privacy when this bill was crafted and in the three iterations that have been before this body."

Lee also brought up the problem of "condom rash."

"It's been asked why performers might not want to use a condom," she began. "Some performers do use condoms and we are not opposed to condom use, but some performers have experienced a problem on set when they have used condoms. Condoms are made for use in people's personal lives where personal encounters last on average 10 minutes or so. On sets, the physical interactions that we have on set in order to produce a scene often go on for up to two hours. That's two hours of friction which is increased by using a condom, and performers have experienced something which we call 'condom rash,' which is small cuts and tears which can then increase our exposure to other STIs in our private lives when we're interacting with people who don't use the rigorous tests that we use in the industry.

"This bill would set us back by 10 years as performers, and would take away our power to choose what we do with our own bodies," she concluded. "The actual effect that this law would have would not be to increase condom use in porn. We can see in L.A. County after the passage of Measure B, which was a similar condom mandate, that there was a 95 percent reduction in applications for adult film permits. That means larger producers who have the resources will move outside of the jurisdiction of the law in order to keep producing, and smaller content producers will shoot illegally. When producers are shooting illegally, that puts performers at an even greater risk. It means our employers have less accountability. Now, I've been in this industry for 14 years and I know what I can expect on set, but the people I'm most concerned about, the people who will be made most vulnerable if this bill passes into law, are new performers who have not had the benefit of working under these protocols that we have in place already, and won't know what they can demand on set."

The next speaker was film editor Ira Gardner, who detailed the impact that AB 1576 would have on the technicians and others in supporting roles in the industry, as well as their families. He charged that passage of the bill would force not only the producers and performers to move out of California, but also all the technical personnel needed to produce adult content, causing an upheaval for many families in terms of cost and personal relationships.

Stuart Waldman, president of the Valley Industry & Commerce Association, spoke next, but his input was virtually the same as it had been before the Arts Committee, which can be read here.

Free Speech Coalition CEO Diane Duke spoke next, and began by reiterating that while there had been no on-set HIV transmission in the (hetero) side of the industry since 2004, that in L.A. County generally, there are five new HIV cases reported per week, and that the industry's "vigorous testing protocols have been able to stop that at the door." She also gave some details of both the lawsuit against Measure B, a less onerous version of AB 1576, and also about how the industry's PASS system works to protect the medical privacy of performers.

"In order for the state to set something like that [PASS] up, if even possible, would cost hundreds of thousands of dollars, if not into millions," she noted, "so I think that is a cost that has not been aware."

She concluded by drawing the committee's attention to the number of other societies that are opposing this bill, including the Harvey Milk Democratic Society and the Transgender Law Center.

Chate was the final official speaker in opposition to the bill, and he spent his few minutes largely reiterating what others had said, until he was cut off by Chairman Gatto in the interest of saving time.

Gatto then asked whether others would like to be heard in opposition to the bill, and more than two dozen performers, editors, videographers, other technicians and even some concerned citizens stepped to the microphone to voice their opposition—and some even managed to get in a few points that others had failed to mention.

"You can't expect the taxpayers to fund something like this, the self-regulated, above things like domestic violence, elderly care, other things like that," said performer/producer Amber Chase. "I don't know where this will come from because I know some of the things that are written in this bill, like the studios and the producers having to pay for the $200 tests for performers to be cleared for performance. As a tiny, tiny producer as well as a performer, I cannot pay for other people's tests. When I shoot, I often film couples in reality porn where they don't use condoms in their personal life but because we're making this production available for the public to enjoy—which it's not sex ed. If it were sex ed, pornography would put in fifth and sixth grade classes but it is not, because it's for adult entertainment, and if you want to educate the public about sexual health and stuff, maybe do it like cigarette packs, where at the beginning of pornography, we all say, 'I was tested; maybe you should be too to know your status.'" She had more to say, but Gatto cut her off.

"We are not employees; we are private contractors that do a job," charged videographer Joshua Diven. "I personally have about seven different companies that I work for, and which one of them is supposed to pay for the performer's test when the performer is working for 12 different companies this month. Which company should pay it? Moving isn't really an option for me. ... If this bill passes, the only one that's really gonna benefit is U-Haulbecause we're all gonna be moving."

"The language of the bill doesn't really clarify what 'personal protective equipment' is besides condoms," actress Alex Chance importantly noted, with actor/director/producer/FSC Board member Mo Reese adding, "This bill is an invasion of privacy for performers and it is also an unfair burden upon the performers that actually create their own content, that own their own small businesses, including performers that have their own websites, independent clip sale stores, things like that; people that actually shoot in the privacy of their own homes that will honestly be forced, because they are a business, they are making a profit off pornography, they will be forced to use condoms."

Also among the industry members to express their opposition before the committee were Patrick J. Knight, Ray Rucci, Pink, Maitresse Madeline, Alyssa Contreras, Arielle X, Mickey Mod, Jiz Lee and Shine Louise Houston.

When it was time for other committee members to weigh in and/or ask questions, member Tim Donnelly asked about the employee/independent contractor divide, and Rand Martin took that opportunity to mislead the committee once again.

"We're not dealing with independent contractor versus employee in this bill," Martin stated. "It has already been ruled through courts that they are employees and not independent contractors. This bill has nothing to do with independent contractors versus employee or changing one from an independent contractor to an employee."

In fact, no such court ruling exists.

Donnelly also asked performers to weigh in on the same issue, and Cameron Bay stated that when she worked for Kink, she considered herself an employee because that company had paid for her plane fare and wardrobe, while Lorelei Lee stated that, "Most performers are independent contractors. There are some occasions where performers do work for only one company and they become employees but the majority of performers work for a different company every single day. They provide their own wardrobe, provide their own paper, their own travel; they also pay agency fees—I work through the agents oftentimes too." She also added, in response to Donnelly's question, that she paid for her own health insurance.

Assembly member Steven Bradford was concerned about the burdens the bill would impose on CalOSHA, noting that he had recently participated in hearings on airport safety at LAX, and it was revealed then that CalOSHA had just two inspectors for workplace safety in the entire region. Martin tried to allay his concerns by noting that CalOSHA inspectors only respond when a complaint is made, and do not conduct investigations independently.

Gatto reserved the final comments before the vote for himself, and he used them to get in a few digs at AIDS Healthcare, which he noted had deemed the previous version of the barrier protection bill, AB 640, as non-controversial—without noting that he'd gotten a ration of shit from AHF for his opposition to that bill.

"You have a special tax benefit; you're a nonprofit; the legislature also voted for you an additional tax benefit where you pay no sales tax whatsoever at your thrift stores," Gatto addressed AHF's Martin, "and I guess the question is, you spent quite a lot of money, AHF did, lobbying this bill last year and actually sending communications that looked like political mailers; is that something that's within the scope of your nonprofit?"

"I have no knowledge about what the law requires or allows under that law," Martin ducked, promising to get back to him with an answer.

With that, the committee voted, and as previously noted, passed AB 1576 out of committee.

Following the hearing, both AHF and FSC sent out press releases, with Free Speech noting that, "Hall’s attacks have unified the producers and performers in a way we haven’t seen since the culture wars of the '80s. We cannot allow politicians to treat adult performers as disposable, to disregard very real concerns in favor of a paternalistic bill that criminalizes adult film. Hall has never been on an adult film set, he does not know how the industry works, he does not understand the concerns of adult performers—and he does not care. He has what he thinks is a political winner on his hands, and he’ll continue with it until he destroys what he claims he will protect."

AHF, on the other hand, claimed victory, with its president, Michael Weinstein, deceptively stating, “In the last year, at least two additional adult performers—Cameron Bay and Rod Daily—became infected with HIV while working in the industry," then adding, "AB 1576 expands and broadens worker protections for all California’s adult film workers on a statewide basis. We are grateful that Assemblymember Hall has shown the courage—and the vision—to recognize that workers in the adult film industry are entitled to the same safeguards and worker protections that any employee in California is, and we will do whatever we can to help pass this legislation."

And the beat goes on... at least for another week, since the full Assembly is expected to take up the bill before they recess on May 27.